Culture Clash: Investor’s Rights v. Cultural Heritage in International Investment Law & Arbitration

Abstract

This study aims to explore the ‘clash of cultures’ between international investment law and international cultural law. When countries pursue economic growth, their policy makers may have an incentive to lower cultural standards to promote economic activities. If states nonetheless maintain a high level of cultural heritage protection, disputes may arise as foreign investors can claim that such policies affect their economic interests thereby breaching investment treaty provisions. Given the extraordinary increase of foreign direct investment (FDI) flows in recent years, the privileged regime created by international investment law within the boundaries of the host state has increasingly determined a tension between investors’ rights and cultural heritage protection. In some cases, foreign investors have claimed that cultural policies negatively affected their investment, thereby amounting to indirect expropriation. In other cases, the investors alleged discrimination and/or violation of the fair and equitable treatment standard. In sum, there is a variety of potential conflict areas between investor rights and cultural policies.The interplay between investor’s rights and cultural heritage protection raises a number of questions. First, have arbitral tribunals paid any attention to cultural heritage? If so, how have they balanced investors’ rights and the cultural policies of the host State? Second, what implications, if any, can be drawn from this emerging case law with regard to the current debate on the unity or fragmentation of international law? Third, have arbitral tribunals conformed to existing adjudicative patterns of other courts and tribunals on cultural heritage issues?This study aims to address these questions by mapping the uncharted land of cultural heritage related disputes. After defining the concept of cultural heritage disputes, this study analyzes and critically assesses the cultural heritage related disputes and explores some legal options to reconcile the different interests at stake. Finally some conclusions will be drawn.